Guide to obtaining evidence from the United Kingdom in cases of serious or complex fraud - some questions and answers

It is possible for overseas prosecutors and investigators, in cases of serious or complex fraud, to ask for the help of the London Serious Fraud Office to obtain information in the United Kingdom. In general terms the SFO’s powers are available to obtain documents, interview witnesses (but not under oath) and restrain assets.

1. What is serious or complex fraud?

The Fraud Act 2006 introduces several general offences of fraud which may be committed by a person who:

• makes a false representation
• fails to disclose information when he is under a legal duty to do so;
• abuses a position of trust

In each case, the Defendant's conduct must be dishonest and his intention must be to make a gain, or cause a loss or the risk of a loss to another. There are also a number of other individual fraud-type offences which require that the accused was dishonest; and that he acted, or intended to act, so as to harm the rights of others.

Whether or not a fraud is serious is a question of fact. At the Serious Fraud Office, we use as a rough guide the figure of GBP 1 million being lost, or at risk of being lost, as a result of the fraud. However, if the amount involved in your fraud is less than GBP 1 million, it is still possible that we could accept it. This is because other factors can make a fraud serious, according to our criteria - for example, widespread public concern, or the involvement of persons who hold public office.

Whether or not a fraud is complex is also a question of fact. For example, if it involves a large number of financial transactions, particularly transactions across national boundaries, then it is likely to be complex. If, on the other hand, it involves a single transaction, it is unlikely to be complex.

Note that it is not necessary to show that a fraud is both serious and complex, only that it is either serious or complex.

2. What can the Serious Fraud Office do to help?

The Serious Fraud Office has coercive powers (called "Section 2 powers" after the section in the Act of Parliament creating them) which enable us to do the following:

• Require any person (including, for example, a company or bank) to produce to us any relevant documents, including confidential documents. If the person is a lawyer, he cannot be required to produce documents to which legal privilege attaches. Legal privilege is a specialised subject in itself: but documents are not legally privileged just because they are confidential, nor are they legally privileged if they are held with the intention of furthering a criminal purpose. A lawyer can always be required to give the name and address of his client.
• Require any person (including, for example, a company or bank) to answer any relevant questions, including questions about confidential matters. The position with a lawyer and legal privilege is as at (a) above.
• Where we determine that to require a person to produce relevant documents would be likely to result in that person destroying them, hiding them or taking them out of the country, so as to frustrate your criminal investigation, we may apply to a court for a warrant to search that person's house or business premises and seize the documents. However, before granting a search warrant, a magistrate must be satisfied that we have considered all other means of obtaining the material, such as service of a notice for production. This means that we need to understand what facts have led you to conclude that a search warrant is the only way in which you will be able to recover the documents. A search warrant cannot authorise the seizure of documents covered by legal privilege. The position with a lawyer and legal privilege is as at (a) above.

Apart from the use of coercive powers, the Serious Fraud Office can help you obtain publicly available information (for example, about companies); and can interview persons voluntarily (i.e. without using coercive powers) if they agree to this. Note that the Serious Fraud Office cannot itself freeze bank or other financial accounts. You can ask the Home Office for this (see below) but special preconditions are needed.

3. Who may ask for help?

This depends primarily on who is allowed to make a request for help under the law of your country. The United Kingdom can receive a request for help from an overseas criminal court or tribunal, an overseas prosecutor, or any other overseas authority which appears to have the function of making requests for help in criminal cases.

4. How do I make a request for help?

All requests for the exercise of coercive powers must be made by a Letter of Request sent to the United Kingdom Central Authority (United Kingdom Central Authority) as follows:

The Officer in Charge
United Kingdom Central Authority
Home Office
Queen Anne's Gate
London SW1H 9AT
UNITED KINGDOM

Telephone: international code + 44-207 273-4083
Fax: international code + 44-207-273-4400

5. At what stage in my investigation may I send a Letter of Request?

Generally speaking, the United Kingdom can receive a Letter of Request provided either that a criminal offence has been committed in your country or that there are reasonable grounds for suspecting that a criminal offence has been committed in your country, and that you are investigating it. It is not necessary that any person should yet have been charged with committing a criminal offence, or that you should have formally commenced proceedings (NB this may be necessary if you request seizure or freezing of bank accounts ­ see separate Home Office Guidelines).

6. What should the Letter of Request contain?

Apart from paragraph (i) below, there are no particular formalities which the United Kingdom requires in a Letter of Request; the important thing is that it should be in plain, concise English. You should understand, however, that where you want us to use our coercive powers, your Letter of Request and any supplementary Letters of Request are the only documents upon which we can rely. It is not, in other words, enough for us to tell an English court that we have used our coercive powers because of something which you have told us verbally, but which is not written down in the Letter of Request. We cannot overemphasise the importance of this legal requirement.

The following additional points may be helpful:

1. Set out details of your organisation and who you are, and aver that you are permitted under the law of your country to make requests to foreign authorities for assistance in criminal cases.
2. Set out a short account of your investigation, what you believe has happened, the amount of money which is involved, and why you believe that the fraud is serious or complex.
3. Which criminal offences in your country appear to have been committed? Please give us sufficient details so that we can be satisfied that they would constitute one or more offences of fraud if the crime had taken place in the United Kingdom. It is also important that you clearly explain the relevance of the enquiries you wish to pursue in the United Kingdom to the offences you believe to have been committed. It is also essential that you explain the link between the persons under investigation and the suspected offences.
4. When using our coercive powers, we have to declare names of persons under investigation. If you have already charged persons with criminal offences, we could name them. It is not necessary for us to name a natural person, however, and if, for example, you are investigating a fraud involving a company or a bank, it is permissible for us merely to name that company or bank. This may be important if you are trying to keep your investigation confidential, and the persons whom you propose to charge do not know about it. You should explain fully what the situation is.
5. We are often asked whether it is necessary to send copies of documents with the Letter of Request. Documents may be helpful in explaining what it is that you are investigating. Clearly if you want a document to be shown to a witness, you do need to send a copy.
6. It is extremely important that you tell us exactly what it is that you want us to do. Here are some examples:

1. Voluntary Interview of a witness = a witness agrees to be questioned by us or by your representative. The witness makes a written "witness statement" for you, which he signs. This statement is not made under oath, though the witness does state that his evidence is true and he may be prosecuted here if it is not.
2. Evidence taken on oath = the witness is summoned to a Magistrates Court (and takes a formal oath) and gives oral evidence, which is recorded in writing, signed and certified by the Magistrate. The Magistrate may allow a representative from your country to take part and ask questions in court, or he may require a written list of questions from you in advance. As an alternative, a witness can make a written affidavit, confirming this on oath before a solicitor who certifies the statement. (NB there is a small fee for this payable to the solicitor)
3. Statutory Interview = a witness or defendant may in certain cases (e.g. serious or complex fraud, Company inspections or Financial Services and Markets Act 2000 investigations) be compelled to answer questions, and is subject to criminal sanctions if he refuses. The Serious Fraud Office has statutory powers under Section 2 Criminal Justice Act 1987 to issue a notice requiring an interview and, in appropriate circumstances, an English-speaking Prosecutor from your country may be authorised by the Director to participate directly in such an interview. In all cases involving statutory interviews a special undertaking (Page 7 below) will be required from your country restricting the use to which the evidence will be put. In summary: the answers given in statutory interviews may not be used directly against the interviewee at his criminal trial, in breach of his human rights. It should be noted that some professional witnesses, e.g. bankers, lawyers and accountants, may insist on a statutory interview if they are asked to provide confidential information about clients. As long as the witness is not later made a defendant (e.g. in cases involving money laundering), you will be able to make full use of the evidence he gives in any way allowed by your own courts. If he is later treated as a defendant, the special undertaking will apply and you will not be able to use his own evidence against him.
4. Interview under caution = under English law, persons who are suspected of having committed a criminal offence must be warned, before they are interviewed, that they do not have to answer questions. English legal procedures a special form of 'caution' to be given f the answers are to be admitted in an English Court. A potential or actual defendant may nevertheless agree to be interviewed by us or by your country's representative. If he does agree, you may give him your own form of 'caution' or any warnings that your own law requires to ensure fairness. The offender must be given details of the offences you suspect him of committing; so that he is fully informed of his position under your law. He is also entitled to have a solicitor present and to seek legal advice during the interview (for which your country may be asked to pay).

7. Please give us as much information as possible about persons whom you want us to find and interview, or from whom you want us to obtain documents. This includes, insofar as you have them, full names, addresses, dates of birth, telephone numbers, and if you think it would help, a photograph. It is equally important to give us as much information as possible about premises which you want us to search, including the persons who are likely to be there.
8. How do you want us to authenticate documents for use in your court? Please tell us what your courts require and we will do our best to assist. We will normally provide photocopies of documents, which can be certified by a member of the Serious Fraud Office. If an original document is particularly important (e.g. because of a signature), we can sometimes provide this. When we interview a person, we can tape record the interview, which you could then have transcribed. Alternatively, we could draw up a witness statement for the person to sign. Do you want a witness statement to be authenticated, either by a member of the Serious Fraud Office or someone else? If so, please tell us who you would like to authenticate it.
9. For legal reasons which we can explain to you in more detail if necessary, you must include in your Letter of request the following two undertakings:
   "If the United Kingdom Secretary of State for the Home Department decides to refer this Letter of Request to the Serious Fraud Office, I undertake that:-

1. No document or other information obtained will be used other than in criminal prosecutions arising from the investigation set out in this Letter of Request, without the prior consent of the Secretary of State for the Home Department; and
2. No statement made by any person to the Serious Fraud Office on foot of their coercive powers will be used against that person in a prosecution. Unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings, by or on behalf of that person."

The undertaking at (I) is commonly required by most countries when granting legal assistance of this sort.

Undertaking II is required in case you ask us to exercise our statutory powers to interview a witness or potential defendant. Under our own Human Rights Act 2000, we are not allowed to use answers given under statutory compulsion directly against the interviewee at his criminal trial. The undertaking you give at II is intended to preserve a defendant's rights in your country. If it is not given, the interviewee may have a 'reasonable excuse' not to answer our questions. The undertaking does not prevent you using a witness' statutory interview in your trial if your law permits this; but it prevents you doing so if the interviewee is (or later becomes) a defendant in a criminal trial. Undertaking II is of no effect in the case of voluntary interviews of witnesses. It is only necessary when we use our statutory powers to obtain testimony.

7. Can the Serious Fraud Office obtain evidence anywhere in the United Kingdom?

No, only in England, Wales and Northern Ireland. There are similar powers in Scotland which are exercised by the Crown Office. If you need evidence in Scotland, we can put you in touch with the Crown Office. There are also similar powers in Jersey, Guernsey and the Isle of Man, and again, we can put you in touch with the appropriate authorities if necessary.

8. By what method should the Letter of Request be sent?

This is primarily a matter of the law of your country. It may be that your law permits you to despatch a Letter of Request by post or by international courier (such as DHL) direct to the United Kingdom Central Authority. On the other hand your law may require you to pass a Letter of Request through diplomatic channels. Any of these methods are acceptable to the United Kingdom Central Authority, indeed in a case of urgency, the United Kingdom Central Authority is prepared to accept a Letter of Request by fax. May we simply emphasise that in all bureaucracies, including our own, documents can go astray unless guided to the right place? You need, by whatever means, to ensure that your Letter of Request does in fact arrive at the United Kingdom Central Authority. There are examples of Letters of Request taking up to four months to arrive through diplomatic channels! Obviously an international courier or a fax machine are the most reliable, and quickest, methods. Where it is necessary to send further information urgently to the United Kingdom Central Authority (e.g. before a search), use of a fax machine is essential.

9. Can requests be made in money laundering or fiscal fraud cases?

Money laundering as such is normally dealt with by the police rather than the Serious Fraud Office. However many frauds include laundering the proceeds of the fraud; and insofar as you are really investigating a serious or complex fraud, the Serious Fraud Office can help. If you are in any doubt, then please contact us and we will be happy to discuss the case with you.

As far as serious or complex fiscal fraud is concerned, the Serious Fraud Office can only help you in three situations:

1. if you have already instituted criminal proceedings for the fiscal fraud; or
2. if your country and the United Kingdom are signatories to a Treaty (e.g. the Special Protocol on Fiscal Matters to the European Convention on Mutual Assistance in Criminal Cases) under which they agree to assist each other in the prosecution of fiscal offences; or
3. the conduct constituting the fiscal offence would constitute an offence of the same or a similar nature if it had occurred in the United Kingdom.

10. Is it necessary for the legal system of the overseas country to be able to reciprocate if there were a similar United Kingdom request?

No. The United Kingdom does not require reciprocity, although naturally we hope that our partners will assist us where possible, if necessary amending their law in order to do so.

11. May I contact the Serious Fraud Office for advice before sending my Letter of Request?

Yes. We encourage early contact, either by personal visit or, more usually, by telephone, fax or letter. If you wish us to apply for search warrants, then we will require a substantial amount of background information and we would particularly welcome early contact with you in order to plan the operation.

We are always happy to advise on the text of a Letter of Request.

Because responsibilities within the Serious Fraud Office change from time to time, we suggest that the best approach is to contact either by telephone, fax or letter:

The Officer in Charge
The Mutual Legal Assistance Unit
The Serious Fraud Office
Elm House
10-16 Elm Street
London WC1X 0BJ
UNITED KINGDOM

Telephone: +44 (0)20 7239 7380
Fax: +44 (0)20 7833 5442
Email: mla@sfo.gsi.gov.uk

Should you have difficulty reaching us by telephone, a fax message is often the solution, giving your name and telephone details and a convenient time when we might telephone back to you.

Revised January 2001